Public Protector, Adv Thuli Madonsela,
Deputy Public Protector, Adv Kevin Malunga,
Excellencies Ambassadors and High Commissioners and members of the Diplomatic,
Honourable Members of the Judiciary,
Honourable Members of Parliament,
Chief Executive Officer of the Office of the Public Protector and Staff Members of the Office of the Public Protector,
Stakeholders present,
Ladies and gentlemen,
Comrades and friends.
Good evening, on behalf of the Ministry and Department of Justice and Constitutional Development, I wish to thank you for the invitation to this important occasion. I also convey the best wishes of the Minister of Justice and Constitutional Development, Minister Jeff Radebe.
It is both late in the evening as well as late in the year - a year which for some of us is still far from over – in fact if the media is to be believed the year is only starting in a few days’ time - so I will try to tailor the length of my remarks accordingly, without detracting from the importance of the occasion and the very important role played by the Office of the Public Protector as one of our state institutions supporting constitutional democracy.
I would like to start by associating myself with the warm words of welcome in respect of the newly appointed Deputy Public Protector Advocate Kevin Malunga. Advocate Kevin Sifiso Malunga was appointed by President Jacob Zuma as Deputy Public Protector on 10 December 2012 for a seven year term.
Advocate Malunga was appointed after the National Assembly on 22 November 2012 agreed unanimously, with 253 members in support, to adopt a report of the Portfolio Committee on Justice and Constitutional Development which recommended his appointment.
The Committee also was unanimous when it said, after interviewing four of the five nominees who availed themselves for interviews that, “Having interviewed and deliberated on the qualities of the candidates, the Committee recommends that Mr Kevin Sifiso Malunga be recommended for appointment as Deputy Public Protector.”
Reading Advocate Malunga’s curriculum vitae it is not difficult to identify the source of this entire consensus - especially at a time when consensus seems to be a commodity in such short supply, especially in Parliament.
Advocate Malunga holds a BA Law from the University of Swaziland, an LLB from UNISA, and LLM from Georgetown University and is a candidate for a Doctor of Juridical Science from the University of Wisconsin at Madison.
He is presently the spokesperson and legal advisor to the Marikana Commission of Inquiry headed by retired Judge Ian Farlam. He has had a distinguished career in government, the private sector and academia. His areas of specialisation and interest are in project management, research, constitutional and human rights law, legislative drafting and analysis, policy formulation as well as dispute resolution.
It is not difficult, therefore to see why the Portfolio Committee on Justice, the National Assembly and the President of the Republic came to the conclusion that Adv Malunga is indeed a South African citizen who is fit and proper to hold the office as contemplated in Section 2A(4) of the Public Protector Act.
We are confident that Advocate Malunga has all the qualifications and characteristics to discharge his duty to support the Public Protector. We wish him well in this important task. Now, having wished Adv Malunga well in his task, let us examine what exactly we have wished upon him.
I would like to quote from an address that I gave at the National Stakeholder Consultative Forum hosted by the Office of the Public Protector at the Reserve Bank Conference Centre in Tshwane on Monday, 29 March 2010.
I am sure that many in this distinguished audience have heard me repeat these words on a number of occasions. I make no apology for this. These are words that I believe are not only worth repeating often but I believe we have a duty to do so.
Open quote “One of the decisions that we made as a nation at the dawn of our democracy, during the Multi-Party Negotiating Process in 1993, was to accept a package of thirty-four Constitutional Principles with which the transitional Constitution and all subsequent Constitutions would have to comply.
Constitutional principle XXIX provides for the independence and impartiality of a Public Service Commission, a Reserve Bank, an Auditor-General and a Public Protector which shall be safeguarded by the Constitution in the interests of the maintenance of effective public finance and administration and a high standard of professional ethics in the public service.
In the same year the African National Congress had proposed, in a document titled, Building a United Nation: ANC Policy Proposals for the Final Constitution, that, "The Constitution shall as far as possible empower the poor and the vulnerable to enforce their rights and shall inter alia create a Human Rights Commission and a Public Protector to perform this function."
Prior to that, in 1992 already, the ANC had said in its document, Ready to Govern, that: "The ANC proposes that a full-time independent office of the Ombud should be created, with wide powers to investigate complaints against members of the public service and other holders of public office and to investigate allegations of corruption, abuse of their powers, rudeness and maladministration. The Ombudsman shall have power to provide adequate remedies. He shall be appointed by and answerable to parliament."
Former President Nelson Mandela explained the thinking behind the creation of the Public Protector to the Africa Regional Workshop of the International Ombudsman Institution in 1996, as follows:
"We were mindful from the very start of the importance of accountability to democracy. Our experience had made us acutely aware of the possible dangers of a government that is neither transparent nor accountable. To this end our Constitution contains several mechanisms to ensure that government will not be part of the problem; but part of the solution.
Public awareness and participation in maintaining efficiency in government within the context of human rights are vital to making a reality of democracy. Many South Africans can still recall a time when the face of the Public Service was hostile, and a complaint could lead to victimisation or harassment; when access to justice seemed an unrealistic dream. In the new South Africa the face of the Public Service is changing radically.
However, we are not yet out of the woods; much still needs to be done in terms of transformation. In this sense, therefore, our Public Protector's Office is not only a critical instrument for good governance. It also occupies a central place in the transformation of the public service by, among other means, rooting out the arrogance, secrecy and corruption so rampant during the apartheid years."
The importance of the Public Protector was also appreciated by the judicial arm of our democratic State when, in declining to certify the draft text of the Interim Constitution, the Constitutional Court, in its First Certification Judgment, remarked that:
“The independence and impartiality of the Public Protector will be vital to ensuring effective, accountable and responsible government. The Office inherently entails investigation of sensitive and potentially embarrassing affairs of government. It is our view that the provisions governing removal of the Public Protector from office do not meet the standard demanded by Constitutional Principle XXIX.”
These provisions were, of course, subsequently amended and accepted by the Constitutional Court in its final certification judgment.
The mandate of the Public Protector is set out in Chapter 9 of the Constitution as being to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action.
The Public Protector is given wide-ranging powers both in the Constitution as well as in national legislation to execute this mandate.
Whether these powers are adequate and whether they are properly understood by all concerned, including the Office of the Public Protector, is a matter that we look forward to hearing the views of this Stakeholder Consultative Forum.” Close quote.
I raise these matters not only for the benefit of the Deputy Public Protector but also to indicate that our Constitution and the institutions established by it are the product of a long history of careful policy development.
In a few days’ time, the African National Congress (ANC) will be holding its 53rd National Conference in Mangaung. It is a special conference as it coincides with the celebration of the centenary of the ANC that has been celebrated for the whole year throughout the country and the world under the theme: Unity in Diversity.
I raise this not because I am member of the ANC, neither do I raise it in a narrow partisan or party political manner. I raise it because in many respects the ANC has throughout its history been a parliament of the people, a factory of solutions to the challenges faced by the nation - a source of new and inspiring ideas for the many different groups and strata of people who make up our society, united in their diversity.
To judge by the media coverage and, regrettably, also the actions of some of its own members, one would think that the ANC is a parliament of squabbles, a factory of headaches, dissension and disunity and that the development of ideas and policies has come to an end.
However, I want to paint a very different picture tonight. The ANC lives, and the ANC leads, also with the development of ideas. I want to invite all in this room to contribute to the discussions that are continuing a centenary long tradition of principled leadership in pursuit of a better life for all in our society.
I want to highlight three areas that will be discussed at the 53rd National Conference that I think are specially relevant to state institutions supporting constitutional democracy, including the Public Protector:
First, The Commission on Legislatures and Governance will be discussing the how budgets of different arms of the state should be determined and allocated. The question posed in the policy discussion document is whether the legislative arm of the state’s budget should be treated in the same way as the executive and the judiciary and goes on to raise the question whether the budgets the institutions created in Chapters 9 and 10 of the Constitution should not be located in Parliament’s budget.
We hope that the outcome of these discussions will overcome the delays in engaging with, and resolving upon the recommendations of the report of the parliamentary committee chaired by the late Professor Kader Asmal regarding state institutions supporting constitutional democracy.
Second, The Commission on Peace and Stability will be discussing, amongst others, the transformation of the judiciary and, in particular matters pertaining to the administration of our courts in the context of ensuring access to justice and strengthening the independence of the judiciary.
The Peace and Stability policy discussion document says:
“The transformation of the judiciary extends beyond the initiatives and programmes geared to transform its racial and gender composition envisaged in section 174(4) of the Constitution.
The transformation extends to processes that would change the mindset of the members of the judiciary and a complete overhaul of the legal system realise a goal of a unified South Africa, free of racism, sexism, poverty and deprivation.
The Constitutional Principles adopted by the ANC in 1991 sought to establish a judicial system that advances the ideals of a national democratic society and social justice.
In particular, the Principles provided for the following:
Without interfering with its independence, and with a view to ensuring that justice is manifestly seen to be done in a non-racial way and that the wisdom, experience and judicial skills of all South Africans are represented on the bench, the judiciary shall be transformed in such a way as to consist of men and women drawn from all sectors of the South African society. In a free South Africa, the legal system shall be transformed to be consistent with the new Constitution. The Court shall be accessible to all and shall guarantee to all equal rights before the law.
ANC’s Constitutional Principles formed the basis of the 34 Constitutional Principles which in turn formed the foundation for the Constitution of the Republic of South Africa, 1996. The independence of the judiciary and the rule of law are the pillars on which the constitutional order is anchored. The separation of powers embodied in the Constitution provides checks and balances to safeguard these values.
Each of the three arms of the State has a distinct mandate that emanates from the Constitution. In terms of the Constitution the Legislature exercises legislative authority; the Executive is charged with political administration to ensure transformation and development for the attainment of the national democratic goals and oversees the implementation of policies and legislation; and the Judiciary interprets the law and excises judicial power in terms of which it could struck down laws enacted by Parliament and any conduct of the Executive which do not meet the constitutional muster. The courts must exercise their judicial authority in line with the injunction of the Constitution.
According to the discussion document the discussion should be geared towards the development of policies for the establishment of an integrated judicial governance framework providing for:
(i) the establishment of a governance structure in the form of a council or appropriate body representative of the judiciary at all the hierarchy of the courts under the command of the Chief Justice as the head of the judiciary
(ii) the extent of the powers and functions of the governance structure, having regard to the policy-related functions of the Minister responsible for the administration of justice
(iii) the establishment of an appropriate court administration system in the form of an Agency or a body with administrative autonomy to provide administrative functions that are closely connected with judicial functions of the courts
(iv) the extent of the powers and functions of the court administration agency or appropriate body, having regard to the South Africa constitutional framework pertaining to among others, the oversight responsibility of Parliament and the accounting arrangement provided for under the Public Finance Management Act of 1999.
Third, National Conference will be discussing the National Development Plan: 2030.
I can speak for very long about the National Development Plan, but I am sure that many in the audience must feel at this time of the evening that 2030 is close.
Therefore, I would like to borrow the summary that President Zuma gave of the National Development Plan at the official memorial service for the late former Chief Justice Chaskalson:
“We know what he wanted to see in our country. He wanted to see what is spelled out in our nation’s National Development Plan, where all South Africans can say:
- We have water.
- We use a toilet.
- We have food on the table.
- We fall asleep without fear.
- We listen to the rain on the roof.
- We gather together in front of heat.
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It is a society where by 2030, each community should have:
- A school
- Teachers who love teaching and learning.
- A local library filled with a wealth of knowledge.
- A librarian
- A police station with respected and upright police.
- A clinic with nurses who love caring for people.
Once we have achieved these goals, we would have made his contribution to have been worth it. He reminded us of his wishes in his recent address to a conference at the University of Cape Town under the theme “Challenges facing the administration of Justice”.
He reiterated the pronouncement of the Constitutional Court in 1998 in the Soobramoney case that:
“We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions. There is high level of unemployment, inadequate social security, and many did not have access to clean water or to an adequate health services.
These conditions existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist, that aspiration will have a hollow ring”.
In his memory, the Executive commits to do better than before, in improving the implementation of programmes that are meant to improve the lives of our people. We commit to do better than before, working with the other arms of the state and all sectors, to reverse the legacy of inequality, poverty and under development and to build a society together, where no child goes to bed hungry.”
The NDP recognises that it will be difficult for us to honour the commitment given by President Zuma is corruption and maladministration undermine our efforts. Therefore NDP includes the following focus areas:
- Building a resilient anti-corruption system
- Strengthening accountability and responsibility of public servants
- Creating an open, responsive and accountable public service
- Strengthening judicial governance and the rule of law.
The state institutions supporting constitutional democracy and all of the stakeholders gathered here tonight have an invaluable role to play in this regard.
We wish the Public Protector, the Deputy Public Protector, the CEO and the staff in the Office of the Public Protector well as you continue to play your important role in realising the objectives of our Constitution. We support you.
I thank you!
